S -1 ERFORMANCE OFUARDIANS AD LITEM FOR These standards apply to all - PDF document

��S-1 &#x/MCI; 0 ;&#x/MCI; 0 ;STANDARDS TO OVERN THE ERFORMANCE OFUARDIANS D ITEM FOR HILDRENAdopted June 23, 20These standards apply to all attorneys serving as uardians ad litem for children in child The TANDARDS TO OVERN THE ERFORMANCE OF UARDIANS ITEM FOR HILDREN ��S-2 &#x/MCI; 0 ;&#x/MCI; 0 ;Commentary on TANDARDS TO OVERN THE ERFORMANCE OF UARDIANS ITEM FOR HILDRENNTRODUCTORY OMMENTMany of the competencies required to represent children are the same as those required for many other types of litigationThere are skills, abilities and actions expected of attorneys in all cases such as conducting interviews, framing and evaluating pleadings, engaging in discovery techniques, thoroughly preparing for trial, and negotiating on behalf of a clientThese skills are of equal importance to other types of civil cases such as labor, tort, contract or family lawThe need for practices such as comprehensive client interviews is present in every caseLikewiseattorneys involved in any form oflitigation must make choices and determine strategic optionsFor example, the need to interview nonparties depends on the nature of the case and the litigator’s goalHence, qualifying phrases like “as appropriate” or “in so far as possible” are found in several standards and commentariesRepresenting children, however, is also different from other forms of litigation. The importance of the dispositional process and the potential for court proceedings to affect the very nature of a family provide the basis for these distinctionsThe longterm consequences to the child client make the role of a uardian ad litem(GAL) as crucial at the dispositional stage as at any other phase of the caseThese consequences demand full attention to the formulation and articulation of wellsupported arguments and appropriate recommendations, as well as critical evaluation of plans proposed by othersThe GAL acts as an attorney and not a witness, which means that he or she should not be crossexamined and, more importantly, should not testifyThe GALshould rely primarily on opening statements, presentation of evidence and closing arguments to present the salient information the GAL feels the court needs to make its decisions. The implicit set of checks and balances operative in nonjuvenile cases is generally not likely to work for childrenIn a civil action involving adults, the successful party knows when a judgment is paid or a court order is implementedIn proceedings involving children this may not be so; the child may be too young to understand or monitor orders, or the legal proceedings may be too complex for the child to understandThus, these standards incorporate provisions regarding communication with the child, the implementation of orders and appeals. ttorneys who serve as GALs are subject to the Rules of Professional Conduct promulgated by the Virginia State Bar as they would be in any other case, except when the ��S-3 &#x/MCI; 0 ;&#x/MCI; 0 ;special duties of a GAL conflict with such rulesFor example, an attorney would follow thgeneral conflict rule (1.7) to determine if there would be a possible conflict of interest if the attorney served as GALBut unlike the Rules Professional Conduct as they apply to confidentiality, there may be times when attorneys serving as a GAL must, in furtherance of their role as GAL, disclose information provided by the child to the courtA GAL appointed to represent siblings should be alert to potential conflicts and, when appropriate, request that the court appoint a separate GAL for each child.The role and responsibility of the GAL is to represent, as an attorney, the child’s best interests before the courtThe GAL is a full and active participant in the proceedings who independently investigates, assesses and advocates for the child’s bestinterestsDecisionmaking power resides with the court.“Shall” is used in the context of a broader, more fundamental, truly binding professional obligation. For example, Performance Standard F provides: “In fulfilling the duties of a [GAL], an attorney shall . . . Appear in Court on the dates and times scheduled for hearings prepared to fully and vigorously represent the child’s interests.” (Adopted 5/8/In contrast, “should” typically points to obligations which are expected and not merely aspirational, but could be an obligation which might not apply in all instances or might simply be a recommended path to the satisfaction of a “shall.” For example, as a component of meeting Performance Standard F, “The GAL should prepare, present and crossexamine witnesses, offer exhibits, and provide independent evidence as necessary.”“Should” often functions in the comments as an explanation of how to fulfill mandates. (Adopted 5/8/ ��S-4 &#x/MCI; 0 ;&#x/MCI; 0 ;Standards Governing PerformanceIn fulfilling the duties of a uardiaad litem(GAL), an attorney shall:Meet faceface and interview the child. OMMENTThe first duty of the GAL is to establish a relationship with the child client, as an attorney would with any clientThis interview should be conducted faceface at a time and place that allows the GAL to observe the child and ascertain: the child’s wishes, the safety and adequacy of the child’s current placement, and the need for further testing, evaluation or interim judicial reliefSuch interviews are best conducted on a date prior to the first court appearance and at a location other than the courthouseIt is important to meet with the child in a private setting, such as the GAL’s office, the child’s home, school or placement, away from the litigants so that the child can talk openly. There should be sufficient time between the interview and court appearances for the GAL to fully analyze the information gleaned, take appropriate actions and formulate meaningful arguments and recommendations. The content and direction of the interview should take into account the child’s age, maturity and potential stress created by the circumstances of the case and prior interviews, especially in cases involving allegations of sexual or other abuseIn such cases, GALs should rely upon videotapes of forensic interviews or attend interviews of the child conducted by trained experts rather than conducting their own independent investigation and interviewing the child about the facts of their alleged victimization.As appropriate,children should be encouraged to articulate their concerns and viewsIn custody and visitation cases, care should be taken so that the child never feels compelled to state a preference or choose between parents or placements. In juvenile delinquency, ild in need of supervision, child in need of services, and status offensecases, the GAL should exercise caution when talking to the child about the circumstances of the offense and advise the child about the limitations on confidentiality that may apply. Young children present a challenge, but the age and verbal ability of the child do not abrogate the responsibility to meet faceface with the childIn meetings with young children, and with children with limited language abilities or those with disabilities, the GAL ��S-5 &#x/MCI; 0 ;&#x/MCI; 0 ;will rely much more heavily on observationConducting such meetings at the child’s home or placement allows the GAL to observe the surroundings and the child’s interactions with others, as well as to interview the child’s caretakerIf the child expresses wishes that are contrary to the GAL’s assessment of the child’s interests and welfare, the GAL is obligated to inform the court of these wishes. If appropriate, the GAL should request that an attorney be appointed to serve as counsel for the childIf the child is uncooperative or appears to have been influenced by a parent or custodian, the GAL should inform the court of these circumstances.B.Conduct an independent investigation in order to ascertain the facts of the case. OMMENTThe GAL shall review any and all relevant records, which may include court, social service, medical, mental health, and school recordsThe GAL should attach a copy of the Supreme Court of Virginia’s Form 514,RDER FOR PPOINTMENT OF UARDIAN ITEM, to ny written request for records since it delineates the statutory authority for access to recordsThe GAL shall interview the parties to the dispute and any other persons with relevant knowledge of the child and the facts that gave rise to the allegations. Such other persons would include, for example, the child’s parents, current caretaker including foster parents, an assigned CourtAppointed Special Advocate (CASA) worker, social worker, child care provider, clergy, neighbors, relatives, school personnel, and health and mental health providersWhen the child is young, there is a greater need to seek independent sources of information and obtain verification of salient factsSuch interviews are best conducted on a date prior to the court appearances and at a location other than the courthouse. GALs should communicate their role and responsibilities clearly to the parents and/or other party’s attorneys including the GAL’s legal status in the proceeding and responsibility to participate fully to protect the child’s interests and express the child’s wishes.In juvenile delinquency, child in need of supervision, child in need of services, and status offensecases, the GAL should contact the child’s defense attorney. There should be sufficient time between the interview and court appearances for the GAL to fully analyze the information gleaned, take appropriate actions such as issuing ��S-6 &#x/MCI; 0 ;&#x/MCI; 0 ;subpoenas, filing motions for temporary or protective relief or appointment of an independent expert to evaluate the child, andformulate a meaningful strategyIf the home environment is at issue, the GAL should visit the child’s home and any proposed alternative placement.GALs should independently evaluate all allegations of child abuse or neglect, or of risk to the child’s safety or welfare, including but not limited to physical or mental abuse, sexual abuse, lack of supervision, educational neglect, and exposure of the child to domestic violence or substance abuse, regardless of whether such abuse or neglect or risk is identified in the parties’ pleadings.Advise the child, in terms the child can understand, of the nature of all proceedings, the child’s rights, the role and responsibilities of the GAL, the court process and the possible consequences of the legal action.OMMEThe GAL shall make every effort to ensure that the child understands, by using language appropriate to the child’s age and verbal abilities, the nature of the proceedings, the consequences which may result, the possibility of future modifications, the attorney’s responsibilities as a GAL, and how to contact the GALIf the child has significant emotional problems, the GAL should consult with a mental health specialist or the child’s therapist in order to determine the best manner to present this informationIn juvenile delinquency, child in need of supervision, child in need of services, and status offensecases, the GAL should explain how the GAL’s role and responsibilities differ from that of the child’s defense attorney and advise the child about the limitations on confidentiality that may apply.The GAL must inform the child that there may be circumstances when confidentiality will apply to communication between the child and GAL, and circumstances when it may not. The GAL may use information received from the child to further the child’s best interestFor example, the GAL may learn from the child that a custodian is taking illegal drugs and may use that information to request that the court order drug testing of the custodian. The GAL should keep the child apprised of any developments in the case and actions of the court or parties involvedThe GAL shall maintain meaningful contact with the child ��S-7 &#x/MCI; 0 ;&#x/MCI; 0 ;throughout the term of the case to monitor the child’s welfare and the parties’ compliance with court orders.Participate, as appropriate, in pretrial conferences, mediation and negotiations.OMMENTThe GAL should be involved, as appropriate, in all pretrial conferences and negotiations including phone calls, formal or informal conferences and mediatiAdditionally, the GAL should take any action necessary to attempt to resolve the case in the least adversarial manner possible; however, a GAL should clarify, when necessary, that he or she is not acting as a mediator.The GAL’s role in such meetings is to represent and advocate for the best interests of the childA GAL who participates in mediation is bound by the confidentiality rules governing mediation as found in § 8.01576.10 of the Code of Virginia. As a general rule, the GAL should encourage settlementsIn exceptional cases where the GAL reasonably believes that a proposed settlement would be contrary to the welfare of the child, the GAL should first discuss these concerns with the parties and their counselIf these concerns are not addressed,the GAL should bring the facts that led to the concerns about the settlement to the court’s attention by filing a motion to vacate the agreement in accordance with § 8.01576.12 of the Code of VirginiaAny proposed settlement which is deleterious to the child should be opposed despite the agreement of the other parties.Ensure the child’s attendance at all proceedings where the child’s attendancewould be appropriate and/or mandated.OMMENTIn so far as possible, the GAL should assure the meaningful participation of the child in all phases of the proceedings which would include attendance at appropriate court hearingsThe GAL should consult the child, caretaker, therapist and any other relevant individuals to determine the appropriateness of the child’s attendance at a hearingdecision to exclude the child from a hearing should be based on a particularized determinationIn making this determination, the GAL should consider the age, maturity and desires of the child; the purpose of the hearing; the advice of those consulted; and the potential risk of trauma to the child evoked by such attendance ��S-8 &#x/MCI; 0 ;&#x/MCI; 0 ;In cases when the child has the right to attend hearings, the GAL should ensure that the child is informed of that rightAs appropriate, the child should be provided sufficient information about such hearings to make an informed decision about whether to attend. Appear in court on the dates and times scheduled for hearings prepared to fully and vigorously represent the child’s interests.OMMENTAs in any case, the GAL is expected to act as an advocate for the client childThis demands attendance at all hearings with the intention of presenting a well formulated position based on the factsThis position should be supported by the GAL’s independent investigation, and through the development of a theory and strategy for the caseThe GAL should prepare, present and crossexamine witnesses, offer exhibits, and provide independent evidence as necessaryAlthough the child’s position may overlap positions of other parties such as the parents, the GAL should be prepared to participate fully in every hearing and not merely defer to or endorse the positions of other parties. The GAL acts as an advocate and uses every attorney skill appropriate to further a resultfavorable to the child’s best interest. The GAL should never engage in ex parte communications with the court or submit written material to the court without promptly delivering a copy to the other parties and their counsel.Prepare the child to testify,when necessary and appropriate, in accord with the child’s interest and welfare. OMMENTThe GAL should determine whether to call the child as a witness based on consideration of the child’s need or desire to testify, developmental and verbal capabilities of the child and the child’s ability to withstand crossexaminationFor some children testifying is therapeutic and empowering, while for others it may be very traumaticThe GAL must determine the possible benefits and repercussions of testifying and the necessity of the child’s direct testimonyThe GAL shall consult a mental health specialist or therapist working with the child, if there is one, to assist in evaluating whether testifying will cause trauma to the child. Consideration should also be given to the availability of other evidence or hearsay exceptions that may substitute for direct testimony ��S-9 &#x/MCI; 0 ;&#x/MCI; 0 ;If the child does not wish to testify or would, in the GAL’s opinion, be harmed by being forced to testify, the GAL should seek an agreement of the parties not to call the child as a witness or utilize other remedies such as an order from the court to limit the scope or circumstances of the testimonyIf the child is compelled to testify, the GAL should seek to minimize the adverse consequences by seeking appropriate accommodations as allowed by law, such as testimony taken by closed circuit television in accord with § 63.21521 of the Code of Virginiaor an “in camera” interview of the child in the judge’s chambers. The GAL should prepare the child for “in camera” interviews or testimony by explaining the nature and purpose of the proceeding and the use or disclosure that may be made of the information that the child provides during the proceeding.In juvenile delinquency, child in need of supervision,child in need of services, and status offensecases, the child’s defense attorney will take responsibility for preparing the child to testify when necessary.Provide the court sufficient information including specific recommendations for court action based on the findings of the interviews and independent investigation.OMMENTThe GAL is obligated to assure that all facts relevant to the case, available dispositional remedies and possible court orders are presented to the courtThe GAL’s arguments to the court should address every appropriate aspect of the litigation including: analysis of any allegations of abuse, neglect or risk; analysis of factors to be considered in a determination related to custody and visitation; placement of the child; servicesto be made available to the child and family; dispositional alternatives for the child or parents in juvenile delinquency,child in need of supervision, child in need of services, status offensecases and custody and visitation arrangements; and any otherorders the GAL deems to be in the child’s interestRecommendations for placements outside the home should take into consideration the availability and appropriateness of placement with relatives or friends, parental visitation and keeping a sibling grouptogetherThe GAL’s arguments should contain, but not be limited to, an analysis of and comment on plans presented by other parties such as the Department of Social Services, court services staff, or as a result of mediation ��S-10 &#x/MCI; 0 ;&#x/MCI; 0 ;In certain circumstances, asummary of the GAL’s findings with recommendations and the basis for those recommendations may be presented to the courtSuch circumstances include the dispositional phase of a case involving both an adjudicatory and dispositional phase or, at the request of the court, in a custody/visitation caseThis summary may be written or oralIf written, copies of the summary should be provided to the other parties and their counsel at least five days prior to the hearing unless otherwise directed by the court.n foster care placement, permanency planning, foster care review proceedings, and mediated agreements, the GAL should be aware of the proposed plans, should consult with the child about the proposal, and explore any alternatives the GAL believes are more ppropriateIf the GAL disagrees with such plans, the court should be advised of this disagreement supported by evidence or information gleaned from the GAL’s independent investigation.Communicate, coordinate and maintain a professional working relationshipin so far as possible with all parties without sacrificing independence.OMMENThenever it is appropriate to the child’s needs and consistent with the direction of the court, the GAL should attend all meetings or hearings involving legal, educational and therapeutic issues specifically related to the caseThese would include meetings of the Family Assessment and Planning Team, Individualized Education Plan (IEP) meetings, school disciplinary or other educational meetings, and foster care placement and review meetingsThe GAL can present the child’s perspective, gather information necessary to proper representation, and potentially achieve a negotiated settlement of all or some issues of the case at such meetings. The GAL should contact any CASA volunteer assigned to the case and coordinate all aspects of the investigation with the CASA volunteerSuch volunteers can offer significant information and assistance to the GALThe GAL should contact the attorneys for the other parties to the case as soon as possible and at least seventytwo hours prior to any hearingCounsel for other parties to the case may have information not included in any of the available records and can provide ��S-11 &#x/MCI; 0 ;&#x/MCI; 0 ;their respective clients’ perspectivesAppropriate communication should be maintained between the GAL and all agencies and professionals involved in the caseFile appropriate petitions, motions, pleadings, briefs, and appeals on behalf of the child and ensure the child is represented by a GAL in any appealinvolving thecase.OMMENTThe GAL should make appropriate motions, including motions in limine and evidentiary objections, to advance the child’s best interest in court and during other proceedingsWhen necessary, the GAL should file briefs in support of legal issuThe GAL should file a show cause against a party who is not following a court order or a motion under § 16.1278 to compel an agency to provide services if it is not doing so as orderedIf the GAL believes the court’s determination is contrary to thechild’s interest or welfare, after considering the wishes of the child, a notice of appeal should be filed and measures taken to assure that the appeal is perfected expeditiously. The GAL should file any appropriate pleadings on behalf of the child, including responses to pleadings of other parties. The GAL should also ensure that the child has representation in any appeal related to the case regardless of who files the appealDuring an appeal process initiated by another party, the GAL for a child may file a brief and participate fully at oral argument.If the GAL feels he or she lacks the necessary experience or expertise to handle an appeal, the GAL should notify the court and seek to be replaced.Advise the child, in terms the child can understand, f the court’s decision and its consequences for the child and others in the child’s life.OMMENTThe GAL should review all orders to ensure they conform to the court’s verbal orders and statutorily required findings and noticesThe GAL should discuss all such orders and their consequences with the childThe child is entitled to understand what the court has done and what that means to the childThe GAL should explain whether the order may be modified or whether the actions of the parties may affect howthe order is carried outFor example, an order may permit an agency to return the child to the parents if certain goals are accomplished ��S-12 &#x/MCI; 0 ;&#x/MCI; 0 ;___________________ The American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuseand Neglect Casesapproved by the American Bar Association House of Delegates, February 5, 1996; American Bar Association Family Law Section Standards of Practice for Lawyers Representing Children in Custody Cases, Committee final draft approved April 24, 2003, and approved by the Section Council on May 2, 2003; The New York State Bar Association Committee on Children and the Law: Law Guardian Representation Standards, Volume II, Custody Cases, November 1999; Representing Children: Standards for Attorneysand Guardians Ad Litem in Custody and Visitation Proceedings, American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (NACC Revised Version), National Association of Counsel for Children, February 1996; American Academy of Matrimonial Lawyers, 1995; and Richmond Juvenile and Domestic Relations District Court Guardian Ad Litem Standardswere heavily relied upon in the development of these standards.